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B-140511, APR. 26, 1960

B-140511 Apr 26, 1960
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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20. IN THE ABSENCE OF AN ORDER BY THE SHIPPER STATING THAT THE SEALS ARE NOT TO BE BROKEN. YOUR ATTENTION IS INVITED TO THE CURRENT MILITARY TRAFFIC MANAGEMENT REGULATIONS. THAT SEALS ARE TO BE AFFIXED TO GOVERNMENT SHIPMENTS. IN INSTANCES WHERE (1) THE TRUCK OR CAR IS LOADED TO FULL VISIBLE CAPACITY. (3) WHEN SEALS ARE DESIRED AND ORDERED TO DENY ACCESS TO THE LADING FOR SECURITY PURPOSES. THE FOREGOING IS FURNISHED AS A MATTER OF INFORMATION ONLY. AS YOU WERE ADVISED IN THE DECISION OF OCTOBER 15. THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE SHIPMENT MOVING UNDER BILL OF LADING WT-5545150 WAS TENDERED AS A TRUCKLOAD SHIPMENT.

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B-140511, APR. 26, 1960

TO MALONE FREIGHT LINES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1959, AND SUBSEQUENT CORRESPONDENCE, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 15, 1959, B-140511, PERTAINING TO YOUR CLAIM NO. 056-16 COVERING TRANSPORTATION CHARGES ON SHIPMENTS MOVING UNDER GOVERNMENT BILLS OF LADING NOS. WT-5545150 AND WT-8933833.

YOU TAKE EXCEPTION TO OUR POSITION AS TO THE PROPER DESCRIPTION OF "SMOKE CANISTERS" FOR CLASSIFICATION PURPOSES ON THE SHIPMENT MOVING ON GOVERNMENT BILL OF LADING NO. WT-8933833 AND, IN CONNECTION WITH THE SHIPMENT MOVING ON GOVERNMENT BILL OF LADING NO. WT-5545150, YOU ASK WHETHER, IN THE ABSENCE OF AN ORDER BY THE SHIPPER STATING THAT THE SEALS ARE NOT TO BE BROKEN, A CARRIER MAY BREAK SEALS ON GOVERNMENT SHIPMENTS FOR THE PURPOSE OF INSPECTING THE FREIGHT OR LOADING ADDITIONAL FREIGHT.

REGARDING THE QUESTION OF SEALS ON GOVERNMENT SHIPMENTS, YOUR ATTENTION IS INVITED TO THE CURRENT MILITARY TRAFFIC MANAGEMENT REGULATIONS, PUBLISHED FOR THE ACCOUNT OF THE MILITARY ESTABLISHMENTS AR-55-355 (ARMY), OPNAV-INST 4600.8 (NAVY), AND AFM-75-2 (AIR FORCE). THESE REGULATIONS PROVIDE, GENERALLY, THAT SEALS ARE TO BE AFFIXED TO GOVERNMENT SHIPMENTS, EITHER BY RAIL OR MOTOR, IN INSTANCES WHERE (1) THE TRUCK OR CAR IS LOADED TO FULL VISIBLE CAPACITY, (2) THE WEIGHT OF THE SHIPMENT EQUALS OR EXCEEDS THE CARLOAD, TRUCKLOAD OR VOLUME MINIMUM WEIGHT, (3) WHEN SEALS ARE DESIRED AND ORDERED TO DENY ACCESS TO THE LADING FOR SECURITY PURPOSES, (4) WHEN EXCLUSIVE USE HAS BEEN REQUESTED, OR (5) WHEN TRAP CAR OR PICK-UP SERVICE HAS BEEN ACCORDED FOR PROTECTION OF THE SHIPMENT DURING MOVEMENT FROM SHIPPING POINT TO THE CARRIER'S TERMINAL. THESE REGULATIONS CAUTION THE CARRIER SPECIFICALLY AGAINST BREAKING SEALS IN TRANSIT ON SHIPMENTS WHICH CONTAIN CLASS A OR CLASS B EXPLOSIVES OR POISONS OR SECURITY MATTER, EXCEPT IN EXTREME SITUATIONS ENUMERATED THEREIN OR WHEN PERMISSION HAS BEEN OBTAINED FROM THE CONSIGNOR, THE CONSIGNEE, THE PROPER REGIONAL DIRECTOR, OR THE EXECUTIVE DIRECTOR, MILITARY TRAFFIC MANAGEMENT AGENCY. THE FOREGOING IS FURNISHED AS A MATTER OF INFORMATION ONLY. IN EACH CASE, THE CARRIER SHOULD BE GOVERNED STRICTLY BY THE REGULATIONS OR INSTRUCTIONS OF THE INTERESTED GOVERNMENTAL ESTABLISHMENT. AS YOU WERE ADVISED IN THE DECISION OF OCTOBER 15, 1959, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE SHIPMENT MOVING UNDER BILL OF LADING WT-5545150 WAS TENDERED AS A TRUCKLOAD SHIPMENT, OR THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED BY THE SHIPPER OR ACTUALLY GIVEN.

YOU WERE ALSO ADVISED IN THE DECISION OF OCTOBER 15, 1959, THAT THE QUESTION OF THE PROPER DESCRIPTION OF "SMOKE CANISTERS," FOR CLASSIFICATION PURPOSES, WAS PENDING IN MALONE FREIGHT LINES, INC. V. UNITED STATES, COURT OF CLAIMS NO. 476-58, AND THAT SHOULD A FINAL JUDICIAL DETERMINATION OF THIS ISSUE BE ADVERSE TO OUR CONCLUSION THE MATTER WOULD BE RE-EXAMINED AT YOUR REQUEST. HOWEVER, THE CITED CASE WAS SETTLED ON A COMPROMISE BASIS IN ACCORDANCE WITH A STIPULATED AGREEMENT WITHOUT PREJUDICE TO THE RIGHTS OF EITHER PARTY.

IN YOUR LETTER OF OCTOBER 20, 1959, YOU REITERATE YOUR CONTENTION THAT THE SMOKE CANISTERS ARE PROPERLY CLASSIFIED AND RATABLE UNDER THE RULE OF ANALOGY AS "PROJECTILES FOR CANNON," RATHER THAN AN "CHEMICALS, NOI," UNDER THE COMBINATION ARTICLE RULE. IN SUPPORT OF YOUR POSITION YOU URGE THAT THE CANISTERS IN QUESTION DID NOT CONSIST OF ONLY TWO COMPONENT PARTS, NAMELY "PROJECTILE PARTS, NOIBN, I/S EMPTY" AND "CHEMICALS, NOIBN," BUT RATHER, ACCORDING TO YOUR INVESTIGATION, ALSO CONSISTED OF (1) AN IMPREGNATED CLOTH SLEEVE, (2) A ZINC SLEEVE AND (3) A CRIMPLED DISK ON TOP OF THE CANISTERS, ALL OF WHICH YOU CONTEND TAKE HIGHER RATINGS THAN THOSE APPLICABLE TO THE TWO COMPONENT PARTS USED AS THE BASIS FOR OUR AUDIT.

AS A PREREQUISITE TO A THOROUGH CONSIDERATION OF YOUR REQUEST FOR A REVIEW OF THE MATTER WE SECURED ADDITIONAL DATA REGARDING THE ARTICLE INVOLVED. THE RECORD NOW AVAILABLE ESTABLISHES THAT THE ARTICLE WAS MADE UP OF FIVE COMPONENTS REPRESENTING THE FOLLOWING PERCENTAGES OF THE TOTAL WEIGHT OF THE ENTIRE ARTICLE: (1) SMOKE MIXTURE, 45.1875 PERCENT; (2) STARTER MIXTURE, 1.6563 PERCENT; (3) IMPREGNATED CLOTH SLEEVE, 0.446 PERCENT; (4) ZINC SLEEVE, 0.446 PERCENT; AND (5) STEEL BODY, STEEL CAP AND STEEL CYLINDER, 52.2642 PERCENT. THUS, ON THE BASIS OF THE EXPANDED RECORD, THE POSITION THAT THE ARTICLE SHOULD BE RATED AS A COMBINATION ARTICLE MAY BE DIFFICULT TO SUSTAIN, EVEN THOUGH THE OTHER PARTS NOT CONSIDERED IN OUR AUDIT, WHICH MAKE UP THE COMPLETE ARTICLE, REPRESENT A NEGLIGIBLE PERCENTAGE OF THE ENTIRE ARTICLE.

THE INTERSTATE COMMERCE COMMISSION HAS HELD THAT THE RULE OF ANALOGY, BY ITS TERMS, IS OPERATIVE ONLY WHEN ARTICLES ARE NOT SPECIFICALLY PROVIDED FOR, NOR EMBRACED IN THE CLASSIFICATION AS ARTICLES, NOIBN. WEAVER PANTS CORPORATION V. ALABAMA GREAT SOUTHERN RAILROAD CO., 223 I.C.C. 566. APPEARS THAT "CANISTERS, SMOKE, FOR PROJECTILES," WAS FIRST SPECIFICALLY PROVIDED FOR IN THE CLASSIFICATON IN ITEM 3855 OF SUPPLEMENT NO. 7 TO NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, EFFECTIVE OCTOBER 1, 1958, AT A COLUMN 40 TRUCKLOAD AND COLUMN 70LESS-THAN-TRUCKLOAD RATING. WE ARE UNABLE TO SUBSCRIBE TO YOUR VIEW THAT A SMOKE CANISTER IS ANALOGOUS TO A PROJECTILE FOR CANNON. FOR AN ARTICLE TO BE ANALOGOUS OR "LIKE" ANOTHER ARTICLE IT MUST HAVE SOMEWHAT SIMILAR TRANSPORTATION CHARACTERISTICS AND THERE IS NO APPARENT SIMILARITY BETWEEN SMOKE CANISTERS AND PROJECTILES FOR CANNON. THE RECORD SHOWS THAT THE BUREAU OF EXPLOSIVES OF THE ASSOCIATION OF AMERICAN RAILROADS TESTED THE SMOKE CANISTER AND FOUND THAT IT WAS NOT SUBJECT TO INTERSTATE COMMERCE COMMISSION EXPLOSIVE REGULATIONS. MOREOVER, WE FAIL TO FIND "SMOKE CANISTERS" LISTED IN EITHER AMERICAN TRUCKING ASSOCIATION MOTOR CARRIER'S EXPLOSIVE AND DANGEROUS ARTICLES TARIFF NO. 4, OR IN THE COMPARABLE RAIL EXPLOSIVE TARIFF, TOPPING'S NO. 4. THUS, WE ARE DEALING WITH AN ARTICLE WHICH IS NEITHER DANGEROUS NOR EXPLOSIVE, WHEREAS YOU ATTEMPT TO COMPARE IT WITH AN ARTICLE WHICH IS LSTED IN THE EXPLOSIVE REGULATIONS AS EITHER EXPLOSIVE OR POISONOUS. OBVIOUSLY THE RATINGS SHOWN IN THE CLASSIFICATION FOR PROJECTILES ARE BASED ON THE HIGHEST ELEMENT OF RISK ATTACHED THERETO, AS THE PROJECTILES FOR CANNON LISTED AT ITEM 39 OF PAGE 11 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 7 ARE THOSE WHICH WOULD EITHER CONTAIN HIGH EXPLOSIVES, DANGEROUS EXPLOSIVES, POISONS OR DANGEROUS SMOKE, MAKING THEIR TRANSPORTATION HAZARDOUS. CONCERNING THE ELEMENT OF RISK, THE INTERSTATE COMMERCE COMMISSION HAS HELD THAT ONE OF THE STANDARDS IN ESTABLISHING RATES ON EXPLOSIVES AND OTHER DANGEROUS ARTICLES IS THAT SUCH RATES SHOULD VARY ACCORDING TO THE RISK ATTENDANT TO EACH PARTICULAR ARTICLE. SEE BLUMSTEIN V. PHILADELPHIA AND READING RAILWAY CO., 21 I.C.C. 90, AND RATES ON POWDER AND HIGH EXPLOSIVES, 151 I.C.C. 155. NO SUCH ELEMENT OF RISK HAS BEEN SHOWN TO HAVE BEEN ATTACHED TO THIS SHIPMENT OF SMOKE CANISTERS.

UNDER THE GENERIC HEADING "ORDNANCE," ITEM 32 ON PAGE 217 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 7 NAMES A 3RD CLASS RATING, VOLUME MINIMUM WEIGHT 20,000 POUNDS, FOR "POTS, SMOKE, NON POISONOUS, NON- EXPLOSIVE.' THE ACTUAL WEIGHT OF THE SHIPMENT HERE INVOLVED WAS 33,416 POUNDS. THUS, IF THE SMOKE CANISTERS HERE INVOLVED ARE NOT IN FACT "POTS, SMOKE," THEY APPEAR UNDER RULE 14 OF THE GOVERNING CLASSIFICATION TO BE MORE ANALOGOUS, IN A SHIPPING SENSE, TO SMOKE POTS THAN TO PROJECTILES FOR CANNON AND, AS SUCH, SUBJECT TO THE 3RD CLASS RATING PUBLISHED IN THE ABOVE-MENTIONED ITEM 32.

ACCORDINGLY, WE ARE INSTRUCTING OUR TRANSPORTATION DIVISION, IF OTHERWISE CORRECT, TO SETTLE YOUR CLAIM ON A BASIS CONSISTENT WITH THE PROPER DESCRIPTION OF THE COMMODITY INVOLVED IN THIS MOVEMENT, FOR FREIGHT PURPOSES, BEING UNDER THE RULE OF ANALOGY "POTS, SMOKE, NON POISONOUS, NON -EXPLOSIVE.' A COPY OF THE SETTLEMENT ON SUCH BASIS WILL BE FURNISHED TO YOU IN DUE COURSE.

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